Commonwealth v. PeerCommonwealth v. Peer
- Reporters:
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- Before:
- Olszewski
As a result of a domestic altercation that grew into a confused and tangled melee, appellant, James A. Peer, was arrested and charged with recklessly endangering another person (REAP), terroristic threats and simple assault. Following a non-jury trial, appellant was convicted of the REAP charge. He now appeals from the judgment of sentence.
On September 10, 1994, appellant and his wife attended a party hosted by Robert Trask. Sometime around 2:30 a.m., several guests witnessed a dispute between appellant and his wife in which appellant grabbed his wife and threatened to kill her. At least two of the party guests attempted to pry Charlotte Peer away from appellant, to no avail. It was at this time that the witnesses noticed that appellant was holding a gun. At some point, Mr. Trask ran out of his home and saw that appellant had his weapon trained on Charlotte Peer. After appellant refused to surrender the gun, Mr. Trask tackled appellant. In the ensuing struggle, appellant threatened to kill Mr. Trask and dug the barrel of his gun into Mr. Trask’s chest. Appellant was eventually subdued and restrained without harm to himself or Mr. Trask.
Appellant presents a number of issues for our review. He argues that: (1) the Commonwealth failed to sustain its burden of proof with respect to the intent requirement of the
With respect to appellant’s initial claim, that of insufficient evidence to sustain the REAP conviction, our standard of review is well-settled. This Court must view the evidence and all reasonable inferences derived therefrom in the light most favorable to the Commonwealth, as verdict winner, and determine whether sufficient evidence was presented to prove each element of each crime beyond a reasonable doubt. See, e.g., Commonwealth v. Berkowitz, 537 Pa. 143, 146-48, 641 A.2d 1161, 1163 (1994); Commonwealth v. Smolko, 446 Pa.Super. 156, 162-63, 666 A.2d 672, 675 (1995).
The crime of recklessly endangering another person is committed when a person “recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.”
In addition to the sufficiency argument, appellant claims that, because he was acquitted of the lesser included offense of simple assault, he could not rightfully be convicted of the greater offense of REAP. This argument is fundamentally flawed.
Although the Commonwealth argues that simple assault and recklessly endangering another person are distinct offenses, this Court is bound by the controlling precedent of this Commonwealth which holds that simple assault is indeed a lesser included offense of recklessly endangering another person. See, e.g., Commonwealth v. Berrena, 421 Pa.Super. 247, 251-53, 617 A.2d 1278, 1280 (1992); Commonwealth v. Channell, 335 Pa.Super. 438, 444-45, 484 A.2d 783, 786 (1984); Commonwealth v. Artis, 294 Pa.Super. 276, 282-83, 439 A.2d 1199, 1202 (1982). This finding affords appellant a Pyrrhic victory, however, for it does not follow that this prevents a conviction for only the greater offense.
The fact that simple assault is a lesser included offense of recklessly endangering another person means that the two crimes merge for sentencing purposes and that, if convicted for both crimes, appellant could only have been
Because we have found that sufficient evidence existed to convict appellant of recklessly endangering another person, this Court will not disturb the inconsistent verdict that resulted in appellant’s acquittal on the lesser included offense of simple assault.
Appellant next claims that the trial court erred in refusing to sustain his motion to dismiss pursuant to
In relevant part, Rule 1100 provides that “[t]rial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than three hundred sixty-five (365) days from the date on which the complaint is filed.”
It is evident from the record that the Commonwealth did not at any time prevent appellant’s case from commencing or act surreptitiously in any manner. The testimony from Linda Lessick, of the Westmoreland County Court Administrator’s Office, taken at the Rule 1100 hearing, established that a crowded criminal docket was the sole reason for the delay in prosecuting appellant. Both this Court and our Supreme Court have held that court congestion may provide a reasonable explanation for the inability to try a defendant within the prescribed time period. See, e.g., Commonwealth v. Smith, 524 Pa. 72, 76-77, 569 A.2d 837, 339 (1990) (courts are under no obligation to rearrange their dockets to accommodate a defendant’s Rule 1100 rights); Commonwealth v. Eaddy, 419 Pa.Super. 48, 58-59, 614 A.2d 1203, 1209 (1992), alloc. denied, 534 Pa. 636, 626 A.2d 1155 (1993). Moreover, appellant’s bald assertions that “the prosecution decided the order of selecting cases for trial” and “the Assistant District Attorney, assigned to the Courtroom elected to try other cases before proceeding with the within case” are vacuous and unfounded. (Appellant’s brief at 26).
In light of the foregoing, we cannot conclude that the trial court abused its discretion in denying appellant’s Rule 1100 motion. Appellant presented a dearth of evidence which would indicate a lack of due diligence on the part of the Commonwealth. Also, appellant’s request for an additional
The next issue presented for our review is whether the trial court erred in allowing witnesses to testify about the altercation between appellant and his wife that was occurring when the victim arrived on the scene. Specifically, appellant claims that the altercation constituted a prior bad act and that the testimony was irrelevant and prejudicial.
Trial judges are afforded broad latitude and discretion in determining the admissibility of evidence. Their learned determinations will not be disturbed absent a finding of an abuse of discretion. See, e.g., Commonwealth v. Wharton, 530 Pa. 127, 144-46, 607 A.2d 710, 719 (1992); Commonwealth v. Holloman, 424 Pa.Super. 73, 78-80, 621 A.2d 1046, 1049 (1993).
Initially, we note that the altercation at issue cannot readily be described as a “prior” act. The general prohibition against the admission of evidence showing prior bad acts to prove criminal propensity or disposition normally refers to acts that are distinct in time and place from the events which are the focal point of a defendant‘s trial. See, e.g., Commonwealth v. Potts, 388 Pa.Super. 593, 606-07, 566 A.2d 287, 294 (1989), alloc. granted, 525 Pa. 656, 582 A.2d 322 (1990); Commonwealth v. Kubiac, 379 Pa.Super. 402, 410-12, 550 A.2d 219, 224 (1988), alloc. denied, 522 Pa. 611, 563 A.2d 496 (1989). In this case, the altercation between appellant and his wife began several minutes before the victim arrived on the scene and was ongoing at the time that the victim attempted to disarm appellant. Rather than detailing a prior act of appellant, the testimony was relevant to describe the heated and tense situation into which the victim entered when he rushed out of his house.
Nonetheless, even if the acts of appellant were to be considered “prior” in time, this Court has long recognized an exception to the general rule disallowing testimony of prior bad acts where the testimony is relevant to detail the overall sequence of events leading up to the crime and the evidence is
Applying this standard to the instant case, we have no difficulty in finding that the challenged evidence was relevant to the charges of REAP, simple assault and terroristic threats. The testimony served to establish that appellant was the aggressor in the situation and was threatening the safety of •his wife, the victim and several bystanders. Without this testimony, the ensuing struggle over control of the gun could not be properly understood.
Additionally, appellant has failed to present any evidence of undue prejudice which would result in disallowing the otherwise relevant evidence. Rather, appellant has simply made the unsubstantiated assertion that the evidence was “prejudicial.” In so doing, appellant misstates the standard to be applied. It is axiomatic in a criminal trial that all evidence offered by the prosecution will be prejudicial to the defendant. Were mere prejudice the standard, virtually all evidence could reasonably be excluded. For this reason, the test for admissibility is whether the challenged evidence is so unfairly prejudicial that its inflammatory nature makes its probative value de minimus. See, e.g., Commonwealth v. Dollman, 518 Pa. 86, 89-94, 541 A.2d 319, 321-23 (1988); Commonwealth v. Blount, 387 Pa.Super. 603, 614-16, 564 A.2d 952, 958 (1989), alloc. denied, 525 Pa. 594, 575 A.2d 561 (1990). As our Supreme Court recently stated, a trial court is not “required to sanitize the trial to eliminate all unpleasant facts from the jury’s consideration where those facts form part of the history and natural development of the events and offenses with which the defendant is charged.” Wharton, 530 Pa. at 147, 607 A.2d at 720.
Appellant has made no attempt to support his claim that the proffered evidence was prejudicial, let alone unduly prejudicial, and this Court would be constrained to so find. In sum,
Appellant’s fourth issue presents the question of whether the trial court erred in disallowing testimony concerning an allegation that the victim and his girlfriend had previously accused a third party of murder. Both the victim and his girlfriend were prosecution witnesses, and the defense sought to impeach their credibility through the introduction of this specific act of alleged misconduct. It is well-settled that the scope and manner of cross examination are within the sound discretion of the trial court. A reversal is only warranted upon a finding of an abuse of discretion. See, e.g., Commonwealth v. Tyler, 402 Pa.Super. 429„ 435-37, 587 A.2d 326, 329 (1991); Commonwealth v. Fried, 382 Pa.Super. 156, 164-65, 555 A.2d 119, 123, alloc. denied, 522 Pa. 623, 564 A.2d 915 (1989).
The controlling precedent in this Commonwealth provides that specific acts of alleged misconduct cannot be introduced to impeach a witness. The proper method of cross examination is to impeach a witness by demonstrating that the witness has a bad reputation in the community for truth and veracity. Tyler, 402 Pa.Super. at 435-37, 587 A.2d at 329. Furthermore, impeachment evidence that relates to a collateral matter may properly be excluded as irrelevant. Fried, 382 Pa.Super. at 164-65, 555 A.2d at 123.
This Court has explicitly held that “[t]o refuse to allow a defendant to cross-examine a Commonwealth witness regarding false statements allegedly made in an unrelated case is not an abuse of discretion.” Id.; see also, Commonwealth v. Buehl, 510 Pa. 363, 386-90, 508 A.2d 1167, 1179-80 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988). The instant matter is legally and factually indistinguishable from the controlling precedent of our Commonwealth, and it cannot be said that Judge Pezze abused her discretion in excluding the testimony.
Appellant next contends that it was error for the trial court to proceed with its criminal prosecution subsequent to the
The double jeopardy clause protects individuals from being subjected to successive criminal prosecutions. It does not insulate an individual from the ramifications of ancillary civil or administrative disciplines that may result from the same factual predicate that gave rise to the criminal prosecution. See, e.g., Commonwealth v. Bryant, 346 Pa.Super. 475, 476-78, 499 A.2d 1099, 1100 (1985); Commonwealth v. Brooks, 330 Pa.Super. 355, 358-59, 479 A.2d 589, 591 (1984).
The rationale for this rule is that civil and administrative proceedings serve a purpose distinct from that of the criminal law. “Professional discipline, whether it be lawyers, judges, stockbrokers or any other avocation licensed by the state, is not for the purpose of punishing the violator but is an effort to maintain the standards of the professions and to protect the public from persons unfit to engage in them.” Brooks, 330 Pa.Super. at 360, 479 A.2d at 592 (emphasis added). This Court finds it entirely possible, and even probable, that the Westmoreland County Children’s Bureau chose to terminate appellant in order to maintain the high standards of its office and to protect the public that it serves from persons capable of the type of violence that appellant has displayed. Furthermore, we note that, were appellant’s position the law of our state, the result would be to effectively insulate an entire segment of the population from criminal prosecution and punishment provided that they were fired from their job. This is an outrageous proposition that is at odds with both common sense notions of justice and the law of our Commonwealth.
Appellant presents a second double jeopardy argument for our consideration. Namely, whether his acquittal for
Lastly, appellant claims that the trial court committed two errors with respect to its application of the deadly weapon enhancement pursuant to
It is appellant’s position that “at no time during the alleged reckless endangerment of Mr. Trask did Defendant Peer have control and/or possession of the revolver.” (Appellant’s brief at 36.) The facts prove otherwise. Indeed, in order to arrive at this suspect conclusion, appellant has had to weave a revisionary rendition of the events out of whole cloth. This is evidenced by appellant’s brief, which is replete with references to “alleged victim” Trask and to the “alleged reckless endangerment.” This Court is, however, bound to consider the facts as adduced by the fact-finder in the court below. At trial, numerous witnesses testified that appellant brandished the weapon and threatened to kill the victim. Additionally, the victim testified that he felt the barrel of the gun digging into his chest during the struggle with appellant. We are satisfied that this testimony was sufficient to support a finding that appellant possessed a deadly weapon within the meaning of the applicable statute.
Finally, appellant avers that the trial court erred in concluding that imposition of the enhancement was mandatory upon a threshold finding that appellant possessed a deadly
In the instant matter, the weapon enhancement provided for a mandatory period of thrée-to-six months incarceration. Appellant was sentenced to a period of three-to-twelve months incarceration. Judge Pezze indicated that she had considered the pre-sentence report and the particular circumstances of the case, as well as appellant’s statements to the court on the date of sentence. A trial judge may impose a sentence outside of the sentencing guidelines. See, e.g., Commonwealth v. Jones, 433 Pa.Super. 266, 269-73, 640 A.2d 914, 916-17 (1994). To do so in this case, however, would have required a sentence below the minimum mitigated range of three months. While Judge Pezze recognized this as an available option, she felt that such a departure would not adequately impress upon appellant the severity of the crime committed. Considering the discretion vested to trial judges in sentencing matters, this Court cannot hold that appellant’s sentence was in error.
Judgment of sentence affirmed.